In this dependency case (Welf. & Inst. Code, § 300 et seq.), on the eve of a hearing to terminate parental rights to the minor (Welf. & Inst. Code, § 366.26) and determine whether the child's foster parents should be designated prospective adoptive parents (Welf. & Inst. Code, § 366.26, subd. (n)), the child's mother (mother) filed a relinquishment of her parental rights, designating the child's maternal aunt as the person with whom she intended the child to be placed for adoption (Fam. Code, § 8700, subd. (f)). Despite having been granted numerous opportunities to visit with the child, the aunt had failed to form a bond with the child, who was quite attached to the foster parents with whom he had spent much of his life. Nonetheless, the aunt, mother, and the Department of Children and Family Services (DCFS) sought the immediate placement of the child with the aunt, a position which brought them in conflict with the foster parents and the minor. At the hearing, the dependency court apparently believed that its hands were tied by mother's designated relinquishment. Upon receipt of the official acknowledgement of mother's relinquishment, the court immediately terminated the hearing, and lifted its previous order which had prevented DCFS from removing the child from the foster parents' home without court approval.
In these consolidated appeals, we review three earlier orders of the dependency court, as well as its order lifting its "do not remove" order.
B.C. was born on September 27, 2008. At the time of his birth, his mother was in the custody of a law enforcement agency on a robbery charge, and subject to a mental health hold (Welf. & Inst. Code, § 5150). A DCFS social worker attempted to speak with mother, but mother refused. Mother had no plan for the care of the child while she was incarcerated, and DCFS could discover no relatives of mother. Shortly thereafter, mother was returned to jail, and DCFS placed the minor in a foster home. Throughout this case, the child's father has been unknown.
Mother appeared at the October 1, 2008 detention hearing, but she was not verbally responsive. The court indicated that the issue of the possible appointment of a guardian ad litem would be raised at the following hearing, as it was not clear if mother's muteness was caused by a physical or mental ailment. However, mother was released from jail three weeks after the detention hearing, and disappeared;
In the interim, the minor was adjudicated dependent,
Although DCFS's efforts to find mother were unsuccessful, some of its contact letters reached mother's relatives. The relatives contacted DCFS, indicating that they had been searching for mother themselves. In early May 2009, mother's sister (aunt) stated that she would like to adopt the minor. Monitored visits were arranged for the child with aunt and members of her family, and a home study was begun. By the time of a June 12, 2009 hearing, DCFS had designated aunt as the prospective adoptive parent for the minor. By this date, the child had been in the home of foster parents for four months
Mother was finally located in August 2009; she was living in a mental health rehabilitation center in Long Beach. By this time, the court had set a Welfare and Institutions Code section 366.26 hearing for August 28, 2009. As mother had been located, she was personally served with notice of the hearing.
By the time of the August 28, 2009 hearing, foster parents had sought de facto parent status
DCFS, in contrast, still focused on aunt as the prospective adoptive parent for minor, planning frequent visits to aid in the transition of minor to aunt's home, and planning for aunt and her husband to participate in family therapy,
The court continued the Welfare and Institutions Code section 366.26 hearing to September 25, 2009. The court indicated that the issue of whether minor should be replaced in aunt's home would be considered at that hearing.
Despite the fact that the court indicated the issue of whether minor should be replaced would be considered at the continued hearing, aunt nonetheless filed a Welfare and Institutions Code section 388 petition seeking that replacement. Mother also filed a section 388 petition, arguing that the dependency court erred in failing to appoint a guardian ad litem for her at the initial hearing, an error which she argued required setting aside all orders (including the adjudication of dependency) and proceeding again de novo. Mother argued that, since the proceedings should begin again de novo, the minor should be placed with aunt under the relative placement preference.
At the September 25, 2009 hearing, evidence was presented regarding additional visits between minor and the maternal relatives. Although foster parents believed minor was starting to become more comfortable around some of the maternal relatives, they stated that there was no evidence that he could be left with them for more than 30 minutes or that separation from them would not constitute a major trauma. DCFS agreed that minor still needed comforting at the visits and that he "was inconsolable at times." Faced with this evidence, the dependency court decided to appoint an expert for a bonding study.
The bonding study report is 51 pages long, and was based on interviews with the foster parents, aunt, aunt's husband, aunt's father, and child's babysitters. Fick observed the child alone, with the foster parents, with aunt, with aunt's husband, and with aunt's parents.
After receiving the report, DCFS continued to recommend replacing the child with the aunt and her family. DCFS believed that the attachment concerns raised by the bonding study could be mitigated by "attachment-based therapy." At the December 10, 2009 hearing, the court ordered that
At the January 5, 2010 hearing, it came to light that mother had a conservator who is a public guardian represented by county counsel's office. As DCFS was also represented by county counsel, DCFS's attorney declared a conflict, and a conflict attorney was appointed to represent DCFS. Moreover, mother's conservator was not prepared for the hearing. The matter was trailed to January 7 for trial setting, and, at that time, the hearing was again continued to February 2, 2010.
By the February 2, 2010 hearing, two full months had passed since Fick's report. Although three visits per week had been recommended, aunt had visited minor only three times in total. No arrangements had been made for the attachment-based therapy recommended by DCFS.
On the day of the February 2, 2010 hearing, mother's attorney filed a motion requesting a 30-day continuance on the basis that mother was in the process of formally relinquishing the minor to DCFS for adoption; the process was not yet complete because, as mother was under a conservatorship, court approval was required. The foster parents objected to the continuance, as an attempt to make an "end run" around the child's rights and preclude the termination hearing from occurring as scheduled. The court granted the continuance on the basis that this hearing was the "first time we have noticed public counsel," and indicated the Welfare and Institutions Code section 366.26 hearing would go ahead on March 9, 2010, if the relinquishment efforts were not final at that time. It is this grant of a continuance that is challenged by minor in his appeal.
A relinquishment of parental rights is not final until a certified copy of the relinquishment is filed with the State Department of Social Services (SDSS), and 10 business days have passed or SDSS sends written acknowledgement of receipt of relinquishment. (Fam. Code, § 8700, subd. (e)(1).) In this case, mother raced to meet the March 9, 2010 deadline. On March 1, 2010, mother's psychologist determined that mother has "the requisite mental capacity to understand, appreciate, reason, and articulate her consent to signing a voluntary relinquishment of parental rights." He believed she has the ability to "understand the nature, content, and effect of signing a consent to adoption." Mother's psychiatrist agreed that mother "understands and correctly perceives her familial relationships and fervently desires her son to be adopted by her sister." On March 3, 2010, the Mental Health Courthouse of the Los Angeles Superior Court authorized mother to consent to the voluntary relinquishment of the minor. Thereafter, mother signed a relinquishment of parental rights, designating aunt as the person with whom she
Thus, when the dependency court called the hearing on March 9, 2010, the relinquishment was not yet final. The court therefore proceeded with the hearing.
Upon receipt of the facsimile from SDSS, the court terminated the hearing. Counsel for the foster parents and minor argued that although the relinquishment foreclosed a hearing to terminate mother's parental rights, the court should still proceed on the issue of whether replacing minor into aunt's home was against the child's best interests. The court disagreed, concluding that it no longer had jurisdiction over that determination, because mother had voluntarily relinquished her parental rights. The court stated that the minor "is going to have to be placed with the aunt," and lifted its previous "do not remove" order. The foster parents and minor appealed from that order.
We consolidated these appeals with the appeals of mother and aunt from the denial of their Welfare and Institutions Code section 388 petitions. We issued an order granting a writ of supersedeas, directing that the minor not be moved from his placement with foster parents pending finality of this appeal or further order of this court.
We first consider the denial of aunt's Welfare and Institutions Code section 388 petition; we conclude that summary denial of the petition when the issue it raised (replacement) was to be considered at the next hearing, following receipt of the bonding study, was not an abuse of discretion. Second, we consider the denial of mother's Welfare and Institutions Code section 388 petition. On appeal, mother argues only that a guardian ad litem should have been appointed for her at the commencement of proceedings; we conclude this is not a proper basis for a Welfare and Institutions Code section 388 petition and, in any event, conclude the trial court did not err. Third, we consider the minor's appeal of the court's order continuing the Welfare and Institutions Code section 366.26 hearing—an order which enabled mother to
In this case, aunt had been located in May 2009, and started visiting with the minor sporadically at that time. DCFS expressly indicated its goal was to replace the minor with the aunt as a prospective adoptive parent. In June 2009, the court ordered that the child not be removed from his current placement without a hearing. By late August 2009, evidence began to surface suggesting that moving the child to aunt's home would not be in his best interests. The court indicated that replacement would be considered at the
The trial court did not abuse its discretion in summarily denying aunt's petition. The same result would have occurred had the court set the petition for a hearing, but requested that a bonding study be completed prior to the hearing. There was evidence before the court that the child cried inconsolably when with the aunt and experienced night terrors after visits. That the court sought preparation of a bonding study before considering replacement with the aunt when faced with this evidence was not an abuse of discretion; instead, it was the act of a court properly considering the child's best interests.
Mother argues that the summary denial of her Welfare and Institutions Code section 388 petition constituted an abuse of discretion. Mother goes on to argue that the trial court erred in not appointing a guardian ad litem for her at the detention hearing.
Initially, we believe a Welfare and Institutions Code section 388 petition cannot be used to challenge the court's failure to appoint a guardian ad litem in this manner. Mother's argument for a modification of the placement order is not based on a change of circumstances or new evidence. Instead, mother argues that if a guardian ad litem had been appointed, "it is plausible" that a guardian ad litem experienced in dealing with individuals with mental disorders would have been able to elicit from her information regarding her family, thus "it is more than likely" that her relatives would have been located at the start of the case, and therefore minor would have been placed with them from the beginning.
In order to obtain a continuance of a hearing, written notice shall be filed at least two court days prior to the date set for the hearing, "unless the court for good cause entertains an oral motion for continuance." (Welf. & Inst. Code, § 352, subd. (a).) Moreover, the motion shall be served on the parties at least two court days before the date set for the hearing. (Cal. Rules of Court, rule 5.550(a)(4).) In this case, mother's February 2, 2010 motion for a continuance was neither filed nor served two days prior to the date set for the hearing. Thus, the motion was untimely, and could only have been "entertain[ed]" if there was good cause for the last-minute oral motion. As we discuss below, there was neither good cause for the untimely motion, nor for the continuance itself.
We consider the relevant chronology in some detail. The Welfare and Institutions Code section 366.26 hearing was initially set for August 28, 2009, and subsequently continued to December 10, 2009, to allow a bonding study to be completed. As new counsel had been appointed for mother, the hearing was again continued to January 5, 2010.
Mother's attorney concedes that, on December 10, 2009, she learned the identity of mother's public guardian conservator. However, mother's counsel did not speak to the conservator until December 30, 2009. Immediately thereafter, mother's counsel forwarded the relevant documents from the case file to the conservator. This included notice of the January 5, 2010 hearing.
At the January 5, 2010 hearing, the court was made aware of the conservator. The court again continued the proceedings—both because counsel for DCFS declared a conflict and because the conservator was not prepared. The matter was continued to January 7, 2010, for trial setting.
Mother's attorney spoke with the conservator on January 5, 2010, at which time the conservator refused to communicate with mother's counsel without the advice of (conservator's) counsel. On January 7, 2010, the matter was set for hearing on February 2, 2010. On January 14, 2010, the conservator was served with a "Citation to Appear" for the February 2, 2010 hearing. On February 1, 2010, the conservator informed mother's counsel of mother's wishes to file a relinquishment of parental rights. On February 2, 2010, the day of the hearing, mother's attorney filed and served the request for continuance.
It is clear that, by mid-January 2010, the conservator had been given the necessary documents from the dependency case, and was aware that the
Had mother not obtained a continuance and the hearing went ahead, the trial court would have first considered whether it was in the minor's best interests to replace him into aunt's home. Then, the court would have held the Welfare and Institutions Code section 366.26 hearing, determining whether mother's parental rights should be terminated.
Instead, however, the continuance was granted, which postponed the Welfare and Institutions Code section 366.26 hearing until such time as mother could foreclose it by relinquishing parental rights, by means of a designated relinquishment which gave weight to mother's interest in placing the child with aunt—a decision which may well have been motivated, not by her evaluation of the child's best interests, but instead by the fact that placing the child with aunt would guarantee her continued contact with the child, and perhaps even enable her to raise him.
The parties do not seriously dispute that the trial court erred by lifting its "do not remove" order, thereby allowing the child to be placed with aunt, without considering the child's best interests.
Although the Family Code provides for a so-called designated relinquishment, it does not specify the weight to be given to a parent's designation. It is clear that a designated relinquishment will not always result in the child being placed for adoption in the home of the designated adoptive parent, or eventual adoption by said individual. Indeed, the law provides that if the child "is not placed in the home of the named person . . . or the child is removed from the home prior to the granting of the adoption," the relinquishing parent shall be given notice of that decision and given 30 days within
We can, however, draw an analogy to dependency proceedings. The language of Family Code section 8704, subdivision (a), which provides that the licensed adoption agency to which a child has been freed for adoption "is
While the trial court erred in not considering whether placement with aunt would unquestionably not be in the child's best interests, we are not blind to the fact that significant time has elapsed. Circumstances may well have changed. Certainly, if aunt has visited frequently and consistently, and if aunt and minor have engaged in attachment-based therapy, the child may have established a secure, bonded relationship with aunt. It may also be that aunt continued to visit only sporadically and failed to establish a bond with minor. We are most concerned with the best interests of this child. Thus, while we reverse and remand for further proceedings in the dependency court,
The orders (B219979) from which Mother and the maternal aunt have appealed are affirmed. The orders (B223063) from which B.C. and his de facto parents have appealed are reversed and the cause is remanded for further proceedings consistent with the views expressed herein.
Kitching, J., and Aldrich, J., concurred.
The language was originally added to Civil Code, former section 224n. Civil Code, former section 224n initially provided that a licensed adoption agency to which a child was relinquished for adoption had exclusive custody and control of the child—the same language currently found in Family Code section 8704. It also provided, in language similar to the foster parent language currently found in Family Code section 8710, that if a child had been in foster care for more than four months, the child had substantial emotional ties to the foster parents, removal would be seriously detrimental to the child's well-being, and the foster parents were interested in adoption, the foster parents should be considered along with all other prospective adoptive families. Civil Code, former section 224n also provided, however, that the placement decisions of the licensed adoption agency shall be presumed to be in the best interests of the child and that the presumption may be rebutted in an action filed by the foster parents, establishing by a preponderance of the evidence that they met the criteria set forth above. In 1990, the subdivision of Civil Code, former section 224n which provided for foster parent consideration and for the foster parents to challenge the decision by court action, was amended to state, "This subdivision does not apply to a child who has been adjudged to be a dependent of the juvenile court pursuant to Section 300 of the Welfare and Institutions Code." (Stats. 1990, ch. 130, § 1, pp. 1142-1143.) The Assembly Committee on Judiciary Republican Analysis explains the purpose of the amendment as follows, "The sponsor states that this bill would eliminate confusion over court jurisdiction for dependent children in adoptive placement matters and would result in avoidance of potentially significant costs. The author previously carried SB 1177 which provided for adoption preference for foster parents who seek to adopt a child whose parents have relinquished parental rights to an adoption agency under the jurisdiction of superior courts. This bill clarifies that the preferences stated in SB 1177 were not meant to super[s]ede other existing law provisions for preference of a child who is under the jurisdiction of the juvenile court (being removed from parents for physical abuse or neglect) rather than that of the superior court for agency adoptions." (Assem. Com. on Judiciary, Republican Analysis of Sen. Bill No. 2188 (1989-1990 Reg. Sess.) May 21, 1990.) While this language was subsequently moved (in turn) to Civil Code former section 222.20, Family Code former section 8711, and ultimately Family Code section 8710, the rationale for the language remains the same. The Legislature intended to exempt dependent children from the preferences in Family Code section 8710 because they were otherwise protected by the preferences in dependency law. When a dependent child is no longer protected by dependency law due to a voluntary relinquishment, there is no reason Family Code section 8710 should not apply.
